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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 597-600 OF 2010
THE STATE
V
LOTIVI MAL, MOSES MAL,
EMMANUEL ONG & KATHRINE MAL
Madang: Cannings J
2011: 7, 8, 9, 10, 14, 15, 16, 17, 22 November
CRIMINAL LAW – trial – wilful murder – Criminal Code, Section 299(1) – elements of the offence – whether any of the accused killed the deceased – whether the killing was unlawful – whether the accused intended to kill the deceased – whether any of the accused aided or assisted others who committed the offence or counselled others to commit it: Criminal Code, Section 7.
Four accused were charged with the wilful murder of a man, who had been attacked with weapons. The State's case was that the first three accused killed the deceased during an altercation with him on a road near their village; and that the fourth accused instructed the other accused to kill him. There was direct evidence from several State witnesses as to the involvement of the accused in an incident in which the deceased was killed. The cause of death was not in issue. Each of the accused gave evidence of non-involvement.
Held:
(1) Under Section 299(1) of the Criminal Code the offence of wilful murder has three elements:
- the accused killed the deceased;
- the killing was unlawful; and
- the accused intended to cause the death of the deceased.
(2) The 3rd accused killed the deceased, unlawfully, and intended to cause his death and was therefore guilty of wilful murder.
(3) The 1st and 2nd accused did acts for the purpose of aiding the 3rd accused to commit the offence of wilful murder and each was deemed under Sections 7(1)(b) and (c) of the Criminal Code to have taken part in committing that offence and to be guilty of it.
(4) The 4th accused counselled other persons, including the 3rd accused, to commit the offence of wilful murder and is deemed under Section 7(1)(d) of the Criminal Code to have taken part in committing that offence and to be guilty of it.
Cases cited
The following cases are cited in the judgment:
The State v Abaya Ulas (2010) N4009)
The State v David Yakuye Daniel (2005) N2869
The State v Ephraim Ria Boa (2008) N3436
The State v Jenny Dei (2011) N4231
The State v Melchior Kapus (2010) N4114
The State v Moses Nasres (2008) N3302
The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2005, 11.12.07
The State v Raphael Kuanande [1994] PNGLR 512
TRIAL
This was the trial of four accused charged with one count of wilful murder.
Counsel
A Kupmain, for the State
M Mwawesi, for the accused
22 November, 2011
1. CANNINGS J: Each of the four accused is charged with the wilful murder of Daga Nanas, at Four Mile on the outskirts of Madang town, on Saturday 28 February 2009. The deceased was a local resident. The accused pleaded not guilty so a trial has been held. The State's case is that the first three accused, Lotivi Mal, Moses Mal and Emmanuel Ong, killed the deceased during an altercation with him at a place known as Four Mile Junction in the late afternoon. The State alleges that the fourth accused, Kathrine Mal, instructed the other accused to kill the deceased, and took part under Section 7(1)(d) of the Criminal Code in committing offence, in that she counselled the other accused to commit the offence.
UNDISPUTED FACTS
2. A number of undisputed facts have emerged from the evidence:
ISSUES
3. The offence of wilful murder is created by Section 299(1) of the Criminal Code and has three elements. The prosecution has the onus of proving beyond reasonable doubt that:
4. The primary issues therefore are:
5. Because of the nature of the State's case, which is that not all of the accused actually killed the deceased but that they all assisted in his killing or counselled others to kill him, a further issue arises regarding criminal liability under Section 7 (principal offenders) of the Criminal Code:
6. Resolution of this issue requires a:
Evidence for the State
7. It consisted of:
(1) Mathew Sakel gave evidence about what happened at the Market. He was there in the late afternoon with a friend when Keith Mal, (who is a year or so younger than him), supported by a group of Mal boys including the first three accused, approached him aggressively, swearing at and wanting to fight him. But then an unknown drunkard came into the market and caused a commotion so the attention of Keith and the other Mal boys was diverted from him (Mathew) and they chased the drunkard out of the Market and along the Highway towards the Junction. He (Mathew) did not follow them. He stayed at the Market for a little while. He heard noises from the Junction as if there was a fight there so he headed back to his village, Yehelgum, via a bush track and does not know what happened at the Junction.
(2) Kelly Sakel said that he was at his house at Yehelgum when news reached him that there had been trouble at the Market involving Mathew and the Mal boys. Then he heard a commotion at the Junction and went down the mountainside to see what was happening. Moses Mal and Gilbert Eliah attacked him with a US knife, which cut him on the forehead and left shoulder. When he was injured his people took him up to his house and when he was there Daga was killed.
8. In cross-examination Kelly Sakel denied that he and the deceased were drinking alcohol near the market stall at the Junction before the fight started. He does not drink, he said. His son, Gill Sakel, was at the Junction, trying to prevent the Mal boys from attacking him. His wife, Jacklyn was also present. Seth Mal was present but he does not recall him saying anything about 'we should not fight'. He denied throwing a stone at Seth Mal, which instigated the fight. He denied injuring Keith Mal with an iron rod in an incident at the Junction not long before 28 February 2009.
(3) Gill Sakel, aged 17 at the time, was at the market stall at the Junction when his sister-in-law Dianne Kununga ran up and said that there was trouble at the Market as the Mal boys had fought his brother Mathew. He walked a short distance towards the Market to see what was going on but could see the crowd moving towards the Junction. Onen Mal shouted 'He's one of their ironmen. Hold him!' so he turned around and ran back to the junction. Those in the angry crowd included Emmanuel Mal (aka Emmanuel Ong, the 4th accused), Gilbert Eliah, Keith Mal, Lotivi Mal, Moses Mal, Seth Mal and Steven Kolau. His father, Kelly Sakel, and the deceased, Daga Nanas, came down from the village to see what was happening. He told them to go back, as they are older than the Mal boys, but they kept coming and were arguing heatedly against the Mal boys. Gilbert Eliah attacked his father with a knife. Gilbert and his father fell to the ground together so he (Gill) got between them and pushed Gilbert away, allowing his father to get away. Kathrine Mal drove in to the Junction in her green Ford, and when her boys saw her drive in, they attacked. Moses Mal had a pistol wrapped in a white cloth and when he (Gill) saw that he ran, up the mountain, to his house.
9. In cross-examination Gill Sakel denied that his father and Daga Nanas were in a fighting mood. They did not start the fight. He acknowledged signing a witness statement for the police three days after the incident but denied that it was materially different from his oral evidence.
(4) Wetei Gumari is a cousin-brother of the deceased, Daga Nanas. He comes from Kunduk in the Begasin area but he has been raised at Thalim. He was 28 years old and living with the deceased at Thalim at the time of the incident. He was at the Junction with Kelly Sakel, Daga Nanas and Gill Sakel when the fight started. Gill Sakel wanted his father and Daga Nanas to go up to the house, as the Mal boys were drunk and wanting to fight. He saw the crowd coming up the road from the Market. The Mal boys were drunk and noisy. He knows them well. They included Emmanuel Ong, Gilbert Eliah, Keith Naim (aka Keith Mal), Lotivi Mal, Moses Lydia (aka Moses Mal, the 2nd accused), Onen Mal, Seth Mal and Steven Mal (aka Steven Kolau). They were armed with an iron rod, a slingshot and knives. They started attacking Kelly Sakel and Daga Nanas. Gilbert Eliah cut Kelly Sakel with a knife. The fight had started when Kathrine Mal drove in and opened the car door and shouted 'Kan! That's him! Kill him!'
10. He saw Daga Nanas attacked in the following order and manner:
➢ Emmanuel Ong hit him on the back of the head with a three-cornered iron rod, causing him to fall;
➢ Emmanuel Ong hit him again on his side and also smashed his jaw, causing the deceased to lie face-up;
➢ Keith Mal pushed a US knife into his mouth and rotated the knife, cutting the gums, tongue and causing a number of teeth to fall out (which he, the witness, later collected and gave to the police);
➢ Lotivi Mal cut him on the head with a knife;
➢ Seth Mal used a slingshot to shoot him on the eyebrows;
➢ Onen Mal hit him on the stomach with a shade tree branch, causing blood to come out of his mouth and nose.
11. While that was happening Moses Mal was threatening people with a pistol.
12. After they had killed the deceased the Mal boys got on to Kathrine's vehicle and they drove up Yagaum Road. He (the witness) went to Daga but he was lying dead. People were crying over the body. He lifted Daga and realised that his teeth had fallen out and were scattered on the ground so he picked them up and later gave them to the police. Daga's tongue was also loose and fell on the ground. They took Daga to Modilon General Hospital in town but the staff quickly confirmed what he already knew: that Daga was dead. Kelly Sakel was taken to the hospital at the same time for treatment to the injuries done to him by Gilbert Eliah.
13. In cross-examination Wetei Gumari said it was true that he was from another part of the province and was a settler at Thalim but he was born and raised there and his family always had permission from the landowners to be there. Kelly Sakel questioned the Mal boys as to why they had fought his son Mathew at the Market. He told them 'If you want to fight, leave your weapons, let's fight with bare hands'. He laid a piece of wood on the road to divide the two sides. The witness denied shooting a stone at Seth Mal, which started the fight. It was the other way around: Seth had a slingshot and shot stones at him and Kelly Sakel and Daga Nanas. The fight had already started when Kathrine Mal drove in. Kathrine was driving. Another lady was in the cabin. There were two men and a woman on the back. The Mal boys attacked Daga as soon as she shouted 'Kill him!' It was hard for him to assist Daga as he had been hit with stones and Moses was threatening people with a pistol. It was hard for Kelly to assist Daga as Kelly had been cut with a knife by Gilbert Eliah. Daga tried to defend himself with a grassknife, which he got from the market stall. He swung it at his attackers, including Onen Mal, who was injured on the hand, but Daga was already badly wounded. The witness denied being drunk and denied that Kelly Sakel or Daga Nanas was drunk or had been drinking. It was the Mal boys who were all drunk. He denied fabricating his evidence for the purpose of getting Kathrine Mal and her boys out of the way so that he could gain some benefit through Kelly Sakel getting control over the disputed land.
(5) Sogi Martin is from Wanuma village in the Transgogol area but was living at Four Mile, between the Junction and the Market, in 2009. She was with Kelly Sakel's wife, Jacklyn Sakel, on the afternoon of the incident. Around 5.00 pm she was preparing to walk down to the Market to buy some greens. Jacklyn told her that there was trouble there as the Mal boys had hit her son, Mathew. They started to walk towards the Market but then someone passed a message that Mathew was OK and then they saw the Mal boys walking up the road. The Mal boys included Gilbert, Moses, Lotivi, Onen and Seth. They swore at Jacklyn and pushed her around. Lotivi hit her (the witness) on the face and spat on her. Then Lotivi's mother took the boys away and they continued walking towards the Junction. She saw Kathrine Mal drive past in her green Ford, heading towards the Junction. She did not see what happened there.
(6) Jacklyn Sakel is Kelly Sakel's wife. She is from Milne Bay. She was with Sogi Martin between the Market and the Junction on the afternoon of the incident. She was told about the trouble at the market regarding her son Mathew and was preparing to go down there but then got word that Mathew was OK. Then she saw a group of Mal boys walking from the Market to the Junction, including Emmanuel (who was dragging a three-cornered iron bar), Gilbert, Keith, Moses, Lotivi, Onen and Seth. They were accompanied by their aunties and sisters and other people from the Market. When they reached her the boys abused her, particularly Keith, who accused her of involvement in sorcery and hit Sogi with a tree branch. The Mal boys stopped when their aunties said 'Don't do that. They are only ladies. They have nothing to do with you people.' The Mal boys continued on to the Junction and she followed them as she feared there would be trouble. When she got to the Junction the Mal boys and her husband were trading insults. She put her hands on her husband's chest and told him to go home and pushed him towards the mountain. Daga Nanas and her son, Gill, who were also present, started to head up the mountain but the Mal boys followed them. Kathrine Mal then drove in to the Junction in her green Ford. She stopped the car, got out and stood, got in to the car, reversed, then got out again and stood and shouted 'Kilim Ol!' One of the Mal boys, Gilbert Eliah, then pulled a knife out of an empty rice bag and attacked her husband. Keith Mal also attacked her husband. Onen Mal helped them. Moses Mal was present, standing, but she does not know what he was doing. The next thing she knew, one of the Mal boys hit her on the head with a sharp metal object. She fell, unconscious, for five or six minutes she thinks. When she regained consciousness her husband had disappeared. Daga was lying nearby. Someone helped her up to the village.
14. In cross-examination Jacklyn Sakel agreed that this trouble erupted because of the land dispute between her husband and the Mal family. It might also be due to a prior incident in which her husband injured Keith Mal with an iron bar. That had happened six months prior to 28 February 2009. It was not a recent incident. Her son Gill was present at the fight on 28 February 2009. He was only 17 at the time. He protected his father when Gilbert Eliah attacked him by covering his father and dumping Gilbert to the ground. She did not see what Wetei Gumari was doing.
(7) Snr Const Reuben Sindiwan is a Crime Scene Examiner attached to Madang CID. He took photographs of the various places referred to in the evidence, which were admitted into evidence by consent.
(8) Diane Kununga is the deceased's daughter-in-law. She was living in the deceased's area at Thalim in 2009. Her house is close to the Junction. She was not present at the fight but heard the noise. She hid in a banana patch and observed the following events that took place immediately afterwards:
➢ Kathrine Mal drove her green Ford to Daga Nanas' area;
➢ Lotivi Mal and Gilbert Mal got off the vehicle and went to Daga's house;
➢ Lotivi smashed the windscreen of two cars parked under the house;
➢ Gilbert attempted to set fire to the house.
(9) Nasare Lato is the Controller of the Four Mile Market, which belongs to his father. He gave brief evidence about what happened at the Market. Some of the Mal boys, including Moses Lydia (aka Moses Mal (the 2nd accused)) and Keith Naim (aka Keith Mal), wanted to fight Kelly Sakel's son, but he stopped them and sent them outside. After that he closed the Market and went home. He gave no evidence about what happened after that.
(10) Wilton Bel is a Karkar youth who was living with his parents at Yehelgum in 2009. He was at the small market stall at the Junction and saw Kathrine Mal's boys approaching, including Emmanuel, Keith, Lotivi, Moses, Onen and Seth. They were in a wild mood, and were drunk. They wanted to fight Kelly Sakel and Daga Nanas. Kathrine drove her green Ford into the Junction. She shouted 'Kill them! Kill them!' Then the Mal boys attacked Daga Nanas. Emmanuel hit him on the head with a three-cornered iron. Lotivi Mal cut him on the head with a Tramontina knife. Keith pushed a US knife into his mouth and cut off his tongue. Seth shot him in the eye at close range with a stone fired from a slingshot. While Daga was lying on the ground Onen hit him repeatedly with a shade tree branch causing him to vomit blood, which also came out of his nose.
15. In cross-examination Wilton Bel denied that his oral evidence conflicted with the statement he gave to the police (admitted into evidence), which was:
When Onen's boys saw me, they chased me and I ran away and I did not see how Uncle Sakel was attacked and injured and how Daga Nanas was attacked and killed.
16. He did not read his police statement before he signed it. He was adamant that he was present and that he saw the Mal boys kill Daga Nanas.
(11) Dr Bobby Wellsh is Senior Emergency Registrar at Modilon General Hospital. He conducted the post-mortem examination and prepared a report that has been admitted into evidence, which recorded the following injuries:
➢ compound fracture of mandible (lower jaw) with missing teeth (two incisors);
➢ compound fracture of maxilla (upper jaw) with missing teeth (four incisors);
➢ penetrating knife wound to the left side of the chin, with exit wound at left upper lip;
➢ superficial, 10 cm long, scalp laceration;
➢ 4 cm long right supra-orbital laceration;
➢ collapsed lung, due to tooth in right main bronchus.
17. Dr Wellsh's opinion is that the immediate cause of death was asphyxiation brought about by the compound facial fractures, which led to obstruction of the deceased's airway: the supply of oxygen was interrupted and this led to brain damage. As to the penetrating wound to the left side of the chin, with exit wound at the left upper lip, this was caused by a pointed object, probably a knife or iron rod. This wound may have also been the cause of the missing teeth. As to the lacerations, he was referring to some parts of the body where all layers of skin had been breached. There were also facial lacerations associated with the compound fractures of the mandible and maxilla. The tongue was intact.
(12) Chief Sgt Uluman Hanlau is attached to the Scientific Unit at Madang CID. He took the photographs of the deceased's body on the day of the post-mortem examination, which have been admitted into evidence.
(13) Julie Kum is a Chimbu woman, married to a Simbai man. She lives in Madang town and in 2009 was engaged in business with Kathrine Mal, buying and selling sea cucumber. She was with Kathrine at different times on 28 February 2009, first in the morning when they went to Rempi together, and later in the afternoon when Kathrine drove to her house at Scout's Hall area at Tusbab Beach, Madang town. It was at about 5.00 pm that Kathrine drove in, in her green Ford, with her friend, Angela Bugatar. Kathrine told her and her two brothers to get on the vehicle, which they did. Kathrine drove in the direction of Four Mile, stopping to refuel at the Handymart Mobil service station, Yomba, on the way. When they got to Four Mile Junction there was a big crowd. Kathrine drove the vehicle in a circle, blew the horn, stopped the vehicle and shouted 'Kan! Kilim!' Two groups were fighting, throwing stones at each other. She (the witness) was scared. Plenty of men then jumped on the back of the vehicle, where she and her two brothers and a niece remained, and Kathrine drove them first to her house at Thalim and later to Modilon General Hospital. One of Kathrine's brothers had been injured in the fight and Kathrine was trying to get him treated. At Modilon General Hospital they were informed that a man had died in the fight at Four Mile, so they left and took Kathrine's brother to Yagaum Hospital.
18. In cross-examination Julie Kum agreed that when Kathrine stopped to refuel at Handymart she saw some policemen there, told them there was a fight at Four Mile and gave them K20.00 for fuel. She does not know whether Kathrine asked the police to follow her to Four Mile; and the police did not follow them. No one followed them. They did not call into Jomba Police Station and ask for police assistance. At Four Mile Junction Kathrine drove the vehicle in a circle and at one stage drove it, nose-first, off the road at the front of the market stall, which is slightly uphill.
19. That was the evidence for the State.
Evidence for the defence
20. It consisted of:
(1) The 1st accused, Lotivi Mal, is the son of Kathrine Mal's elder sister, Lydia. He was at Four Mile Market late on the afternoon of 28 February 2009, helping his mother fry sausages. There was a scuffle in the Market between his cousin Keith and Mathew Sakel. Keith was still upset over an earlier incident in which he was speared by Kelly Sakel, who was assisted by Mathew; and that had occurred during a fight that arose because Kelly Sakel's younger brother, Humuk Audaug, had stabbed with a screwdriver two female members of the Mal family (Lotivi's aunt, Sila, and his elder sister). He (Lotivi) and his relatives, Steven and Anong, intervened and the altercation between Keith and Mathew did not escalate into a fight. The market was closed and the crowd walked to their homes along the Highway towards the Junction. His mother headed in the opposite direction, to town. He walked with his relatives, including Emmanuel Ong, Gilbert Eliah, Keith Mal, Onen Mal, Seth Mal and Steven Kolau. He was carrying eskies and a frying pan. On the way they had an altercation with Jacklyn Sakel and Sogi Martin. Keith asked them whether they were going to use poison against them. Onen and Steven hit Sogi and he (Lotivi) spat on her. Someone shouted at them to leave Sogi alone, so they did her no more harm and kept walking. When they got to the Junction, Kelly Sakel was blocking the road, holding a stick and stones, challenging them to fight. Kelly Sakel was supported by Daga Nanas, Wetei Gumari and many others, armed with grassknives. Kelly argued with Seth and threatened to slice him. Seth tried to calm him down by saying 'If you have problems, take it to the police'. Wetei started the fight by throwing a stone at Seth. Then the two groups started throwing stones at each other. He did not see if his relatives, Emmanuel, Gilbert, Keith, Onen or Seth, were holding anything in their hands. He (Lotivi) threw just one stone and ran across to the other side of the Junction as the Sakel group were shooting stones at him from the mountainside. That is when his aunty, Kathrine Mal, drove in and shouted 'The Police are coming! The Police are coming!' Then the fight stopped and everyone scattered. He ran to his house and did not see what happened after that. He did not get on Kathrine's vehicle. He ran along a track near Daga Nana's house. He saw Diane Kununga (State witness No 8) standing there. He crossed the road and went straight home. He was by himself. Maybe others coming behind him smashed Daga Nanas' vehicles but it was not him.
21. In cross-examination Lotivi Mal denied that he and his relatives deliberately formed a group with the aim of fighting the Sakel family. It was a normal Saturday routine for the boys to gather at the Market and assist their mothers and aunties in their market activities. They did not plan the fight and were not armed with any weapons when they walked to the Junction. He admitted spitting at Sogi Martin but he did not strike her with a coconut frond as she claimed. He spat at her as she was 'staring sideways at us'. He was not drunk. He does not know who assaulted Daga Nanas. It was not him.
(2) The 2nd accused, Moses Mal, is 1st accused Lotivi Mal's brother. He was in Madang town on the afternoon of the incident. He got a PMV to Four Mile Market where he was told that there had just been a scuffle between Keith Mal and Mathew Sakel and that the Mal boys were walking up to the Junction. He bought a flex card and phoned his aunty Kathrine Mal to alert her to the situation as he thought there might be a fight. It was about 5.00 pm by this stage. He asked Kathrine to come and pick him up. He stayed at the Market for about 30 minutes, then walked up to the Junction. The two groups were throwing stones at each other. He did not take part. He saw Kathrine's green Ford approaching. Kelly Sakel grabbed Gilbert Eliah and they fell to the ground. Jacklyn Sakel was hitting Gilbert with a shade tree branch and Gill Sakel was attacking Gilbert with a bushknife. He (Moses) ran in, pointed his hand at Gill and told him to stop. He had a runny nose at the time and he didn't want to lose the face towel while he was running, so he wrapped it around the wrist of the hand with which he was pointing, at the same time trying to avoid the stones that were being thrown by the Sakel group. After he had managed to stop Gill Sakel attacking Gilbert he heard Kathrine shout 'The Police are coming!' Then he pulled up Gilbert and they ran together through the banana patch to their house. He did not find out that someone had died until the next morning.
22. In cross-examination Moses Mal denied threatening anybody with a pistol or attacking Daga Nanas. Kathrine Mal did not give instructions to kill anyone.
(3) The 3rd accused, Emmanuel Ong, is Kathrine Mal's son. He was at Four Mile market on the afternoon of the incident. He helped to break up the argument between his cousin Keith Mal and Mathew Sakel. A number of his relatives were at the Market including Gilbert Eliah, Keith Mal, Onen Mal and Seth Mal. The Market was busy as it usually is on Saturday afternoons. There were a lot of drunkards. He followed a big group of people as they walked up to the Junction. On the way he observed that there was an altercation between some of his relatives and Jacklyn Sakel. What that was about, he does not know. It was over by the time he got there. By the time he got to the Junction Kelly Sakel was in the middle of the road, bare-chested, holding an iron bar and stones and challenging the Mal family to a fight. Seth Mal called him 'Wali', which in Tok Ples means 'Brother', 'You are a grown man, leave it to the Police, there's no need for us to fight'. But Sakel was intent on fighting. He laid a stick on the road and said 'Let's have a fair fight'. A war of words developed and the Mal family was pushing the Sakel family up the mountainside but then the fight started and stones were thrown in both directions. He was holding a cylindrical umbrella stand that he had carried from the market. He dropped it and took refuge in the market stall as the stones came down from the top of the mountain, where Kelly Sakel lives. Then he heard his mother's voice. She was yelling 'Police are coming! Stop fighting and get out of here!' Everyone immediately responded. The fighting stopped and people dispersed. He went to his house, following Yagaum Road. It was the first fight in which he has ever been involved. He did not see Lotivi or Moses fighting. He only became aware later that evening that someone had died.
23. In cross-examination Emmanuel Ong denied that he or his relatives were drunk. He denied holding an iron bar or using any such weapon to assault Daga Nanas. He believes the State witnesses have made up stories about the death to get at his mother over the disputed land. His mother did not shout 'Kill them!'
(4) The 4th accused, Kathrine Mal, is the mother of 3rd accused, Emmanuel Ong, and an aunt of 1st accused, Lotivi Mal, and 2nd accused, Moses Mal. She was at Madang Resort with her friend Angela Bugatar from about 2.00 pm. At around 4.00 to 5.00 pm she received a phone call from Moses to say that there was a commotion at Four Mile Market involving some of the Mal boys and Mathew Sakel. She was concerned as she knew from experience what such little commotions could turn into and she did not want her son, Emmanuel, who was educated overseas and is a non-violent person, to be a victim. She and Angela then went in her green Ford to Four Mile in the following way:
24. There were lots of people at the Junction. She stopped the vehicle at the market stall. Stones were hitting the vehicle. She reversed and drove in a circle, trying to disperse the people. She screamed 'Police are coming!' The crowd started to scatter. She did not see Lotivi or Moses or Emmanuel at the Junction. She did not see them until the next day. But she saw her brother, Onen, who had been wounded. His left hand was bleeding so she got him to get on the vehicle and drove to her house, picked up her daughter and took Onen and his wife to Modilon General Hospital. It was getting dark by that stage. At the Hospital they heard the deceased's wife crying, so they decided to take Onen elsewhere for treatment. They dropped off Angela at her workplace in town, and then approached a private doctor in town, who was unable to assist, so they took Onen to Yagaum Health Centre where he was treated. She drove via Bilbil into town and she and her daughter and some other girls stayed in a hotel that night. She does not know why the fight started at the Junction. She did not tell anyone to kill anyone. The State witnesses were lying about that. There is a lot of hatred against her as she is the one who has played a leading role in the various court proceedings over the disputed land. There had been a number of previous fights, including a recent one in which Kelly Sakel's brother had used a screwdriver to attack Sila Mal and Kethura Mal.
25. She admitted in examination-in-chief that she had lied to the police when she was questioned about her movements on the day of the incident. The record of interview (admitted into evidence) shows her saying that she was at a Women and Communications Meeting at Sek (Alexishafen) from 2.00 pm when Moses rang her in the late afternoon; that she excused herself from the meeting and drove with her friend Angela Bugatar and two of her workmen at high speed to the police station and reported a fight at Four Mile; that she drove to Four Mile but did not witness the fight, did not stop the car, did not shout 'Kilim Ol! Kilim Ol', and did not shout at anybody because she saw no one; and that by the time she got there, there wasn't a fight. She lied to the officer who conducted the interview, Chief Sgt Steven Yalamu, to stop further interrogation and because she knew that Chief Sgt Yalamu had said that he wanted her to 'rot at Beon (Jail)'.
26. In cross-examination Kathrine Mal said that she was in a rush once she got the phone call from Moses. It was getting dark by the time they got to Four Mile. The journey took about 30 minutes as they stopped four times on the way. She denied shouting 'Kilim Ol!' or anything similar at the Junction.
(5) Angela Bugatar is a friend of Kathrine Mal and was with Kathrine at Madang Resort on the afternoon of the incident when Kathrine received a phone call from her nephew, Moses Mal, about a fight at Four Mile. They left the Resort and drove to Four Mile via Jomba Police Station, Scout Hall, Jomba Police Station again, and then Handymart. The witness's evidence in this regard was the same as Kathrine's. When they arrived at the Junction sticks and stones were thrown at the vehicle. Kathrine drove in a circle and shouted 'Police! Police!', which caused the crowd to disperse. One of Kathrine's brothers, Doug (aka Onen), was wounded (his fingers had been chopped) so they put him on the vehicle, drove to Kathrine's house, picked up her daughter, and then went to Modilon General Hospital. She (Angela) got off there as she lives close by.
27. In cross-examination Angela Bugatar was adamant that Kathrine had gone twice to Jomba Police Station to seek assistance, to no avail. She denied giving false evidence to protect Kathrine.
(6) Krubel Ban is from Jelso village, which is inland a short distance from Four Mile. She was at the Market late on the afternoon of 28 February 2009 and when it closed she walked towards the Junction on her way home. At the Junction she saw Kelly Sakel, holding a stick and stones, and the deceased Daga Nanas (aka Daga Riba), holding a grassknife, together with their sons and some young children. Kelly Sakel was standing on the road. She knew there would be a fight so she went straight home.
(7) Furi Faig is another Jelso villager. He came to the Junction from town in the late afternoon on 28 February 2009. He saw a crowd piling weapons on the road. 'Sakel' (he does not know his other name) was sitting on a rock beside the road with sticks and stones in his hand.
(8) Gilbert Eliah is aged in his 20s and is related to all the accused. He lives at Wafen village in the Four Mile area. He went to the Four Mile Market in the late afternoon on 28 February 2009 and met Seth Mal and Keith Mal there and when the Market closed, walked with them on the Highway towards the Junction. At the Junction Kelly Sakel was standing in the middle of the road, holding a grassknife. He had placed a piece of wood on the road, stopping them from proceeding, and was challenging the Mal boys to fight. He had mobilised his boys who were armed with stones, sticks and knives. Then one of them, Wetei Gumari, threw a stone at Seth. Daga Nanas was supporting them and surrounded the Mal boys, brandishing a grassknife. Kelly Sakel confronted him (Gilbert) and tackled him. He stood firm but they eventually fell to the ground together. Kelly was holding on to him when his son Gill charged in with a grassknife and cut him (Gilbert) on the back. Others threw stones at him with great force and Kelly Sakel's wife hit him on the back and the abdomen with a shade tree branch, while Kelly Sakel was still hanging on to him. His cousin Moses Mal (the 2nd accused) was telling them to let him go and then Moses pulled him away and they ran for safety. He did not see Lotivi Mal (1st accused) or Emmanuel Ong (3rd accused) taking part in the fight. He left for Lae, where he was attending school, the next day, Sunday, and went to the Anam Medical Centre on Monday 1 March. He was treated and obtained a medical report (admitted into evidence) which records his various wounds: contused right lower eyelid, swollen right shoulder, indurated mark on right shoulder, broken skin on right scapular, 10 cm long x 1 cm deep cut on back (infected, with pus), oblique mark on left scapular.
28. In cross-examination Gilbert Eliah denied being drunk and denied being armed with a US bowie knife and denied cutting Kelly Sakel. He had no intention when he left the Market of fighting Kelly Sakel.
(9) Tamar Mal lives at Wafen village and is Kathrine Mal's sister. The other accuseds are her nephews. She was in town on the afternoon of 28 February 2009. She went to Four Mile Market at 5.00 pm. She told her children to pack up her market gear and then she and other family members and neighbours and other people walked up the Highway towards the Junction. Lotivi Mal (1st accused) walked ahead of her. Emmanuel Ong (3rd accused) walked with her and was carrying her umbrella stand. When they arrived at the Junction Kelly Sakel had placed a stick on the road, blocking their way and asking Seth Mal for a fair fight. Seth did not want to fight and said that the incident in which Sakel's younger brother had stabbed Sila Mal and Kethura Mal with a screwdriver was before the court. When Seth said that, Wetei Gumari threw a stone and hit Seth in the chest. Then the fight broke out. She did not see Emmanuel at the fight. Kelly Sakel's mob threw stones from the mountainside at the Mal group. She (Tamar) and her daughter then shouted 'Police will come! Police will come!' They shouted this as whenever there is a fight the fighting stops if those involved hear that the Police are coming. Then Kathrine drove in. By then the fight was over. She drove her vehicle in a circle. She (Tamar) alerted her to the fact that Onen (aka Doug) had a serious injury. She and her niece and a boy from Danben helped them get Onen on the vehicle and drove him to various places, trying to get his hand, which was badly cut, treated.
29. In cross-examination Tamar Mal denied seeing Moses Mal (2nd accused) at the Market or on the walk to or at the Junction. She denied that any of the Mal boys were armed or drunk. Lotivi Mal (1st accused) was five metres ahead of her group as they walked to the Junction but she did not see any altercation between him and Sogi Martin (State witness No 5) and did not see him spit at her. She saw two of the Mal boys, Anong and Steven, slap Sogi before she (Tamar) told them to stop. Jacklyn Sakel was with Sogi at the time.
That was the evidence for the defence.
Site visit
30. The court party first went to Four Mile Market, observing it from the outside, and then looked along the Highway in the direction of the Junction, and walked along the Highway to the Junction. The point where the altercation with Sogi Martin took place was observed. The Junction consists of a wide area of bitumen, easily big enough for the turning circle of a large 4WD vehicle such as Kathrine Mal's Ford Ranger utility. The mountainside track to Yehelgum was observed, but not traversed. The place where the market was on the day of the incident was observed. The spot where the deceased apparently died, now marked by stones and flowers, was observed. The place where Kelly Sakel stood on the road was observed. The court party walked along Yagaum Road and into the part of Thalim where the deceased and his family lived and observed the spot from where Diane Kununga (State witness No 8) said that she observed various events. From there the court party walked a short distance along Yagaum Road and into the hamlet, in another part of Thalim, containing Kathrine Mal's residence.
Preliminary assessment of the State's case
31. The State has presented direct evidence of how the deceased was killed and who killed him. The most detailed evidence came from State witness No 4, Wetei Gumari, who said that he was present, standing only a matter of metres from the deceased when the deceased was attacked. His evidence, if accepted, would support the proposition that those who killed the deceased were:
32. Wetei Gumari's evidence, if accepted, would support the proposition that those who directly assisted Emmanuel Ong and Keith Mal kill the deceased included:
33. Wetei Gumari was not shown by cross-examination to be an obviously unreliable witness. His evidence was not so fanciful or incredible and his demeanour was not so unsatisfactory as to require his evidence to be immediately disregarded as unreliable.
34. Wetei Gumari's evidence is directly and specifically corroborated by that of State witness No 10, Wilton Bel, and indirectly and generally corroborated by the evidence of State witness No 2, Kelly Sakel, State witness No 3, Gill Sakel, State witness No 5, Sogi Martin, State witness No 6, Jacklyn Sakel, State witness No 8, Diane Kununga, and State witness No 13, Julie Kum.
35. The evidence presented by the State thus supports the State's case and, if accepted, would implicate each of the accused in the killing of the deceased.
Defence counsel's submissions
36. Mr Mwawesi submitted that Wetei Gumari's evidence should not be accepted and that the State had fallen short of proving that any of the accused killed the deceased or assisted or instructed those who did, for the following reasons:
1 The State witnesses had a motive to lie
37. Mr Mwawesi submitted that all the State witnesses with the possible exception of Julie Kum were aligned with Kelly Sakel and had a motive to give false evidence due to the long-running land dispute between the Sakel family and the Mal family. Kathrine Mal has been at the forefront of the dispute and it would serve the Sakel family's interests well to see her convicted, together with her son and her nephews.
38. This is to a certain extent a valid submission. The court must be cautious in a case such as this, where diametrically different versions of events are given by different groups of witnesses, in identifying what interests each group has in the outcome of the case. Certainly, it would be in the interests of the Sakel family, in terms of their land dispute, to see the Mal family disadvantaged by having the influence of their leader, Kathrine, lessened or neutralised by seeing her serve a prison sentence. But the question of motive to lie cannot be considered in isolation. The defence witnesses, particularly the accused, also have a motive to lie, and for them it is a more direct, personal and compelling one: to avoid conviction. So the motive to lie argument only goes a small way in denting the credibility of the State's case.
39. Mr Mwawesi submitted that compared to the demeanour of the State witnesses the defence witnesses were more impressive. The four accused in particular gave short, sharp and direct answers to questions, including those in cross-examination.
40. I do not agree. Lotivi, Moses and Emmanuel gave evidence that was calculated to distance themselves not only from involvement in the attack on the deceased but all knowledge of it. They were all present at a big fight in which someone was brutally killed (as evidenced by the nature of the deceased's injuries) but had no idea how he was killed or who was responsible for his death. Lotivi admitted spitting at Sogi Martin in an altercation between the Market and the Junction but was unable to explain why he did that other than to say that she looked at him sideways. A reasonable inference to draw from this sort of conduct by a young man against a young woman is that he was either drunk or of a violent disposition; either scenario being consistent with his direct involvement in the violence at the Junction that followed soon afterwards. Moses' evidence about staying at the Market for 30 minutes waiting for his aunt to arrive from town and then walking slowly up to the Junction, only to find the fight well under way and running around with a runny nose and his face cloth wrapped around the hand with which he was pointing, was stretching credibility. The purpose of the runny nose and face cloth story seemed to be to counter the evidence of several State witnesses that he was holding a pistol covered by a cloth and threatening people. Emmanuel's evidence was more measured than that of Lotivi and Moses but his claim that he was carrying a round and thin umbrella stand gave the appearance of being manufactured to defeat the consistent evidence of the State witnesses that he was armed with a three-cornered iron rod. As for Kathrine, she did not through her demeanour disclose that she was obviously lying. But she admitted lying to the Police when she was interviewed and it is noteworthy that in her answers to questions, including whether at the Junction she shouted "Kilim Ol!", she used the phrase "God is my witness". This suggests that she cannot be relied on as a witness of truth.
3 Wetei Gumari's evidence was incredible and unreliable
41. Mr Mwawesi focussed on one glaring defect in Wetei Gumari's evidence: he said that the deceased's tongue was cut off, a claim that was defeated by the medical evidence. Dr Wellsh said that the tongue was intact. If Gumari could lie about that, what faith could be put in the rest of his evidence? That was the question posed legitimately by Mr Mwawesi.
42. I have come to the conclusion that Gumari's evidence should not be rejected because of this defect. He was an impressive witness. His demeanour was sound. He did not waver in cross-examination. His recounting of events was temperate and consistent. He adequately explained why he was unable to assist the deceased. His account of how the deceased was attacked was graphic and, apart from the tongue being cut off, consistent with the post-mortem report.
4 Wilton Bel's evidence was inconsistent and unreliable
43. Mr Mwawesi exposed a major inconsistency between this witness's oral evidence and his police statement (admitted into evidence).
44. I consider that the witness adequately explained the inconsistency: he did not read the police statement before he signed it. This is not unexpected. What a witness says in sworn testimony, and when they are subject to cross-examination, will carry much more weight than in an unsworn police statement, recorded in a less formal and stringent environment than in a courtroom. Wilton Bel was an impressive witness. The significance of his evidence is that it directly and specifically corroborates Wetei Gumari's account of how the deceased was killed.
5 Sogi Martin's evidence was inconsistent and unreliable
45. I reject the submission that this witness's evidence was materially inconsistent with her police statement.
6 Much of the evidence of the State witnesses was irrelevant
46. I agree that much of the evidence of the State witnesses gave only an indirect account of what happened to the deceased. In this category was the evidence of Mathew Sakel (re events at the Market, before the fight at the Junction), Kelly Sakel (re an attack on himself, rather than on the deceased), Gill Sakel (re the attack on his father), Sogi Martin (re the altercation with Lotivi, who spat on her, and other Mal boys), Jacklyn Sakel (re the assault on herself, which rendered her unconscious, and on Sogi Martin), Diane Kununga (re what happened after the fight, when Lotivi Mal and Gilbert Eliah came into the deceased's area and caused property damage) and Julie Kum (re Kathrine's actions). However, this evidence was not irrelevant. It was, considered as a body of evidence, of high quality and contributed to the court's assessment of the factual matrix highlighted by the direct evidence about how the deceased was killed.
Final determination of the question: did any of the accused kill the deceased?
47. None of the defence counsel's submissions persuade me that the direct evidence of the two State witnesses about who attacked the deceased should be rejected. The direct evidence is consistent with the medical evidence and is corroborated by the indirect and contextual evidence of other State witnesses. I find it proven beyond reasonable doubt that the 3rd accused, Emmanuel Ong, together with another person, Keith Mal, directly killed the deceased. The first element of wilful murder is proven against the 3rd accused.
48. The 3rd accused, Emmanuel Ong, did not rely on any specific defence such as accident, compulsion, insanity, provocation or self-defence. His killing of the deceased is therefore not authorised, justified or excused by law and is therefore deemed by force of Section 289 of the Criminal Code to have been unlawful. The second element is proven beyond reasonable doubt.
3 DID THE ACCUSED INTEND TO KILL THE DECEASED?
49. It is at this point of a wilful murder trial that the Court is required to consider the accused's state of mind:
50. As Injia AJ (as he then was), highlighted in The State v Raphael Kuanande [1994] PNGLR 512 the relevant time at which to assess the accused's state of mind is when he committed the act that constitutes or is an element of the offence:
Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence. [Emphasis added]
51. I have accepted the evidence about the actions of Emmanuel Ong: he hit the deceased on the back of the head with a three-cornered iron rod, causing him to fall, hit him again on his side and smashed his jaw. The attack caused compound fractures of the mandible and maxilla, which led to asphyxiation and death. An attack to the head of this nature, especially when the deceased was being attacked at the same time by several other persons, is evidence, beyond reasonable doubt, of an intention to kill. The third element of wilful murder is proven and Emmanuel Ong is guilty of wilful murder.
4 SHOULD THE ACCUSED BE CONVICTED OF SOME OTHER OFFENCE?
52. It is not necessary to address this issue as the 3rd accused will be convicted of wilful murder.
5 DID ANY OF THE ACCUSED ASSIST IN KILLING THE DECEASED OR COUNSEL OTHERS TO KILL HIM?
53. This question must be addressed in light of Section 7(1) (principal offenders) of the Criminal Code, which states:
When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—
(a) every person who actually does the act or makes the omission that constitutes the offence; and
(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and
(c) every person who aids another person in committing the offence; and
(d) any person who counsels or procures any other person to commit the offence.
54. I am satisfied that the State has proven beyond reasonable doubt that:
55. As to the 4th accused, Kathrine Mal, there was direct, consistent and reliable evidence from three State witnesses – Wetei Gumari, Wilton Bel and Julie Kum – which was corroborated by the indirect, circumstantial evidence of Gill Sakel and Diane Kununga, that when she drove her vehicle into the Junction she shouted the words 'Kilim Ol!' or 'Kill him!' or words to that effect. I have already categorised Wetei Gumari and Wilton Bel as credible witnesses, despite their not being independent witnesses. Julie Kum was the one witness who was closest to being categorised as independent, as she is not clearly aligned with the Sakel family or the Mal family. She was on the day of the incident a business associate of Kathrine and someone that Kathrine trusted (as Kathrine went to Julie to get Julie and her boys to accompany her and Angela to Four Mile). No clear reason was advanced for Julie wanting to give false evidence, either to assist Kathrine in her defence or to advance the State's case. Julie Kum's demeanour did not make her an unreliable witness. Nor did her account of the trip from Tusbab Beach to Four Mile and what happened at the Junction. It was a more credible account of events than Kathrine's, which included the claim, difficult to believe without independent corroboration, that she went to Jomba Police Station twice and was unable to get any assistance. Kathrine's version of events was corroborated only by the evidence of her friend, Angela, which gave the appearance of being tainted by bias and manufactured for the purpose of the trial. The evidence of Kathrine's sister, Tamar Mal, was not consistent with Kathrine's evidence as Tamar said that it was her who shouted 'The Police are coming!', whereas the defence case was that it was Kathrine who shouted those words, not Tamar. In any event, the entire account of Kathrine being the person who quelled the fight is not credible. The Court finds beyond reasonable doubt that Kathrine's conduct and words inflamed the fight and the attack on the deceased.
56. I am accordingly satisfied beyond reasonable doubt that:
VERDICTS
57. The following verdicts are entered in relation to the four accused who have been indicted on one count of wilful murder under Section 299(1) of the Criminal Code:
| Accused | Verdict |
| Lotivi Mal | Guilty, as charged |
| Moses Mal | Guilty, as charged |
| Emmanuel Ong | Guilty, as charged |
| Kathrine Mal | Guilty, as charged |
Verdicts accordingly.
____________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused
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